1601526 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 457 visa was cancelled by the Department of Immigration. The applicant had been granted the visa to work as a Café or Restaurant Manager for a sponsoring employer. The dispute arose when the sponsor notified the Department that the applicant had ceased employment on 30 May 2015, while the applicant claimed to have ceased employment in August 2015. This cessation of employment, if exceeding 90 consecutive days, would constitute a breach of condition 8107 attached to the applicant's visa.

The Tribunal was required to determine whether the applicant had breached condition 8107 of his Subclass 457 visa by ceasing employment with his sponsor for more than 90 consecutive days. Furthermore, the Tribunal had to consider whether, having found a ground for cancellation under section 116 of the Migration Act 1958, it should exercise its discretion to affirm the cancellation decision, taking into account the applicant's circumstances and the purpose of his stay in Australia.

The Tribunal found that the applicant had indeed ceased employment with the sponsor on 30 May 2015, as notified by the sponsor, and that this cessation exceeded the 90-day limit stipulated in paragraph 8107(3)(b) of the Migration Regulations 1994. The Tribunal noted a lack of documentary evidence to support the applicant's claim of ceasing employment in August 2015. In exercising its discretion, the Tribunal considered the applicant's initial purpose of studying and then working in Australia, and his stated intention to seek permanent residency. However, it found that the purpose of working as a Restaurant Manager for the original sponsor no longer existed. While the applicant had secured a new employer and a new nomination was approved, the Tribunal concluded that, on the whole, the circumstances warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa. The Tribunal stated it had no jurisdiction with respect to a second applicant.